In China, according to the Advertisement Law, advertiser is not allowed to use absolute terms like “the best”, “national level” and “No.1” in its commercial advertisement. Although the principle itself is clear but many problems that frequently arise during the enforcement of such regulation such like how to determines whether a term amounts to an absolute term and if there could be any exception to such regulation remain unclear.
On 7 December 2022, the State Administration of Market Regulation (SAMR) released the draft of the Guideline on the Legal Enforcement of Absolute Terms in Commercial Advertisement (the “Guideline”) to collect public comments. The Guideline is aimed to further clarify problems regarding the enforcement of the regulation on absolute terms.
According to the Guideline, absolute terms that are not referred to particular product or service may not be deemed as unlawful. Advertisers are allowed to use absolute terms if such terms are used to simply express the advertiser’s business philosophy or the goal that the advertiser is pursuing. And even absolute terms are referred to particular product or service, under certain circumstance, such use of absolute terms could also be allowed. For example, if such a term is used in the comparison between the products and services of same advertiser, or if such a term is used to express the “best method of application”, “best timing” or “best duration”, or if the trademark contains absolute terms.
Also, the Guideline states that administrative sanctions shall not be imposed if the violation was minor considering the elements like method of publication, duration, numbers of readers and results. However, such an “minor violation exemption” is not applicable if such absolute terms are used to state the curability, validity or effect in advertising products like drugs, medical devices and healthy foods or state the return rate in advertising financial and investment products.
